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September 28, 2010

Georgia completes (eventful?) execution of suicidal triple murderer

As detailed in this AP story, after some more delays and difficulties, Georgia was finally able to complete the execution of a triple murderer late last night.  Here are some of the details:

A Georgia prisoner who tried to kill himself last week by slashing his arms and throat with a razor blade was executed Monday night amid heightened security for the 1998 murders of a trucking company owner and his two children.

Brandon Joseph Rhode, 31, was put to death by injection at the state prison in Jackson. He was pronounced dead at 10:16 p.m. Rhode declined to speak any last words or have a final prayer....

Rhode's execution had been set for 7 p.m. but was pushed back several hours as corrections officials waited for the U.S. Supreme Court to decide on his plea for a stay of execution. The court rejected appeals later that night.

Medics then tried for about 30 minutes to find a vein to inject the three-drug concoction. The prisoner's eyes darted around the room before the lethal mixture began coursing through his veins. Within minutes he was staring blankly at the ceiling of the death chamber. Moments before Rhode was pronounced dead he turned his head, exposing a bandage over the part of his neck he slashed....

Rhode had initially been scheduled to be put to death Sept. 21, but the Georgia Supreme Court postponed the execution after Rhode was rushed to the hospital that day following a suicide attempt.

Rhode was stabilized at a local hospital and placed in a restraining chair to prevent him from removing the sutures from his neck or doing any other harm to himself, state attorneys said. Defense attorney Brian Kammer countered that Rhode was put in a "torture chair" and subjected to cruel and unusual punishment.

"He has been subjected to the surreal and incomprehensible: Heroic measures taken to stabilize his life by the prison staff that would then execute him," Kammer said in one court filing.

September 28, 2010 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

September 27, 2010

Murder convictions for drunk driver with high-profile victim

As detailed in this AP article, which is headlined "Man convicted of murder in Angels pitcher's death," a California jury today returned murder convictions for a repeat drunk driver who cut short three young lives, one of which was high-profile.  Here are the particulars:

A jury convicted a construction worker of murder Monday for a drunken-driving crash that killed promising rookie Los Angeles Angels pitcher Nick Adenhart and two of his friends.  It was the second DUI conviction for Andrew Gallo, 23, who held white rosary beads and occasionally looked up at jurors as they returned their verdicts....

Gallo was convicted on three counts of second-degree murder and single counts of drunken driving, hit-and-run driving, and driving under the influence of alcohol and causing great bodily injury.  He faces 50 years to life in state prison at his scheduled sentencing on Dec. 10.

His attorney Jacqueline Goodman said Gallo would appeal. "I think it's tragic," she told reporters. "I think there's been a miscarriage of justice." She previously said her client did not intend to kill anyone.

Prosecutors said they charged the case as a second-degree murder instead of the lesser charge of manslaughter because Gallo had a previous DUI conviction, had specific knowledge of the dangers of drinking and driving from his own experience, and had signed a court form from the earlier case saying he understood he could be charged with murder if he drove drunk again and killed someone.

To win a murder conviction, prosecutors had to show Gallo acted with implied malice, intentionally drove drunk, acted with a conscious disregard for human life, and knew from his personal experience that he could kill someone....

Orange County District Attorney Tony Rackauckas said it was the 11th DUI-related murder conviction in the county since 2008.  "People are dying here," Rackauckas told reporters. "We want to get the message out there as well as we can that people will be prosecuted for murder when they engage in this type of conduct."...

Prosecutors alleged during the two-week trial that Gallo, whose blood-alcohol level was nearly three times the legal limit, spent hours drinking beers and shots with his stepbrother at three different bars before running a red light and T-boning the car driven by Stewart.   Prosecutor Susan Price told jurors that Gallo had been repeatedly warned by friends, family and court officials about the dangers of drinking and driving, but his arrogance and need to party prevented him from learning the lesson.

Goodman contended the district attorney's office had overstepped by charging Gallo with murder. She said her client believed his stepbrother was his designated driver and only drove after his stepbrother became too intoxicated and asked him to take the wheel.  By that point, she argued, Gallo was too drunk to realize the consequences of driving drunk.

During the trial, prosecutors played a videotaped interview in which Gallo told police he didn't remember driving and apologized to the families of the victims.

September 27, 2010 in Offense Characteristics | Permalink | Comments (8) | TrackBack

Governor Arnold Schwarzenegger pushes back California's execution plans slightly

As detailed in this new AP article, "California's first execution in nearly five years was pushed back almost two days Monday by Gov. Arnold Schwarzenegger to allow courts more time to consider the condemned inmate's appeals." Here are more of the particulars:

Brown is now scheduled to die by lethal injection at 9 p.m. Thursday, said Terry Thornton, spokeswoman for the state Department of Corrections and Rehabilitation. Brown initially was scheduled for execution at 12:01 a.m. Wednesday.

Brown's attorneys have filed simultaneous appeals in federal and state courts, claiming California improperly adopted its new lethal injection procedures. They also allege that execution under the new regulations would amount to cruel and unusual punishment.

The 45-hour reprieve pushes the execution to within hours of the Friday expiration date on the state's supply of sodium thiopental, one of the drugs used in the lethal injection process.

September 27, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

"California's idea of the death penalty is to bore them to death"

The title of this post is a quote from the father of a murder victim in this notable local story, which highlights that not much is likely to change for most California defendants on death row even if the state does manage to resume executions this week.  The effective piece is headlined "Local death row cases years from execution," and here are excerpts:

California's plan this week to carry out its first execution of a death row inmate since 2006 won't mean any local cases are closer to seeing a date set for lethal injection.  Of the 708 people on California's death row, seven men and one woman have been sent there by North County juries over the past two decades.

They probably will remain there a long time.  The process from sentencing to execution is cumbersome — and decades long.  "California's idea of the death penalty is to bore them to death," said Roy Coe, whose daughter was murdered when she interrupted a burglary in her Vista home in 2005.

Derlyn Ray Threats, the man convicted of killing Coe's daughter, Carolyn Neville, was sentenced to death last month and just moved onto death row at San Quentin State Prison.  Threats, 28, still faces "a ridiculous number of appeals," Coe said, adding that he knows it will be years before an execution date is set.  "There are guys in prison (on death row) for 30 years," Coe said. "I don't have that many years left in me."...

Since 1978, when California reinstituted the death penalty, 14 of the state's inmates have been executed — including one actually executed in Missouri for crimes committed in that state.  More than five times that number — 75 condemned inmates — have died of natural causes, suicide or other reasons, according to the state Department of Corrections and Rehabilitation.

The last five executions took place after condemned inmates had each spent more than 20 years on death row.  When Stanley "Tookie" Williams was put to death in December 2005, he had spent 24 years and eight months on death row.  Clarence Ray Allen, executed in January 2006, moved onto death row in 1982....  In the four years since the last execution, 20 death row inmates died of natural causes, and six committed suicide....

All death sentences are automatically appealed to the California Supreme Court.  But the process is greatly delayed because very few appellate attorneys are willing and qualified to handle death penalty cases.  It often takes more than five years to assign an attorney to handle the automatic appeal.  Even after the attorney is appointed, the process is slow and complicated, and it happens whether the inmate wants it or not.

Take the case of drifter Brandon Wilson, who was convicted of the 1998 slaying of 9-year-old Matthew Cecchi in an Oceanside Harbor public restroom.  Wilson, who asked the jury to "execute me," has been on death row since 1999.  Eleven years later, the opening brief of the mandatory appeal still has not been filed; his attorney has won the court's permission to delay the filing 27 times, most recently last week.

Repeated delays have been the story of the case of LaTwon Weaver, on death row since 1993. Weaver, the son of a Baptist minister, was found guilty of murder in the 1992 shooting death of Vista jeweler Michael Broome during a robbery.  Seventeen years after moving to San Quentin, his automatic appeal is not even far enough along that the state's Supreme Court has considered it or set a date for oral arguments.  Not all of the legal briefs necessary for the case have been filed.

California's handling of the death penalty really does give new meaning to the phrase "justice delayed is justice denied."  Consider this numerical spin on these realities: even if California were to resume executions this week and thereafter managed to conduct two executions in October and every single month thereafter, the state would not carry out the prescribed punishment of those currently on death row until roughly the year 2040!

Some related posts:

September 27, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Senator Jeff Sessions asks circuit nominee if she will "follow the federal sentencing guidelines"

Perhaps this is not news to those following the latest federal judicial confirmation battles closely, but I found notable this new report from the Connecticut Law Tribune concerning the Senate questioning of Second Circuit nominee Susan Carney earlier this month.   Specifically, this report on some back-and-forth with Senator Jeff Sesssion got my attention:

Sessions lectured about the importance of judges following higher courts’ dictates, and those of Congress. He told Carney that if she’d been a trial lawyer or a judge, she would know certain things from experience. “[A] lawyer who’s practiced a lot, or a judge who’s been on the bench for a while, I think understands that they’re not policy-setting officials,” said Sessions.

He then pointedly asked Carney if she would follow the federal sentencing guidelines.

Carney was agreeable, to a point.  She commended the guidelines for bringing “important consistency.”   She also told Sessions that she is familiar with the 2005 U.S. Supreme Court case of U.S. v. Booker, which held the sentencing guidelines interfered with the Sixth Amendment right to a fair trial, and were no longer mandatory.

Sessions, possibly hinting at her confirmation, responded, “I hope that as you wrestle with those issues before you, you realize there is a danger in deferring too readily to the unsupported views of a trial judge who just is not willing to be consistent.”

September 27, 2010 in Booker in the Circuits, Who Sentences? | Permalink | Comments (1) | TrackBack

"Should sex offenders get GPS before leaving prison?"

The title of this post is the headline of this local California story.  Here is how it gets started:

At least twice in the past month, sex offenders prompted multi-agency manhunts in the North County when they refused to be monitored by GPS — a responsibility that falls on the offenders when they get out of prison. One man, who is accused of committing a sex crime the day after being paroled, was caught days later, while the second surrendered to authorities three weeks after going offline.

The cases beg the question: Why aren’t sex offenders strapped with GPS devices before leaving prison?

In San Diego County, which has roughly 500 sex offenders who are monitored by GPS, there are outstanding warrants for 10 who have either cut off their GPS bracelets or never obtained them, according to the regional Sexual Assault Felony Enforcement Task Force.

The topic has gotten the attention of local task force members, as well as state Assemblyman Nathan Fletcher, R-San Diego, who authored the recently signed bill that toughened sex offender laws. His office intends to write a letter to the state Department of Corrections and Rehabilitation asking for justification to the current policy, Fletcher said last week.

“It would seem to make sense if they have to wear GPS anyway, why not give it to them immediately? Why wait a day?” Fletcher said. “In some ways it’s indicative of how broken the system is.”

Some related posts on GPS tracking and related technocorrections:

September 27, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Technocorrections | Permalink | Comments (3) | TrackBack

Contrasting congressional hearings concerning federal criminalization

Tomorrow, September 28, 2010, brings two notable hearings in Congress for federal criminal justice fans. But the concerns driving the morning Senate hearing and the afternoon House hearing seem to be in (direct?) tension. 

In the Senate, as detailed here, the Committee on the Judiciary has scheduled a hearing entitled "Restoring Key Tools to Combat Fraud and Corruption After the Supreme Court's Skilling Decision" for at 10am.  But in the House, as detailed here, the Subcommittee on Crime, Terrorism, and Homeland Security will having at 3pm a hearing entitled "Reining in Overcriminalization: Assessing the Problems, Proposing Solutions." 

The folks at the NACDL have put together this big press kitabout the House hearing.  The executive summary of that kit contends that "[m]any of the approximately 4,450 criminal offenses in the U.S. Code are poorly defined, lack criminal-intent requirements that are sufficient to protect the innocent, and are difficult or impossible to connect to notions of moral wrongdoing."   A great example of one such federal offense would seem to be the honest-services fraud statute that SCOTUS read narrowly in Skilling.  But apparently the Senate hearing is intended to devise a way for Congress to "restore" the (still too broad and vague?) law to its pre-Skilling state.

Though it is silly (and perhaps misguided) to expect the two houses of Congress to be on the same page concerning federal criminal law, it still seems telling that these two competing hearing are taking place on the same day.

September 27, 2010 in Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

California lethal injection litigation continues as condemns refuses "unconstitutionally medieval" choice

As highlighted by this AP article and this CNN piece, a whole new round of litigation has been spurred by US District Judge Jeremy Fogel's decision made this past Friday to permit California to move forward with a planned execution (basics here).  Here are the basics from the AP:

A death row inmate on Sunday asked a federal appeals court to halt his execution as he declined to choose a method for the lethal injection.  Lawyers for Albert Greenwood Brown filed court papers to appeal a federal judge's refusal to block the execution, which is set for Wednesday.

Brown also let pass a noon deadline set by the judge to choose between a one-drug lethal injection or execution by a three-drug cocktail. His attorney called such a choice "unconstitutionally medieval."

Brown's refusal to choose means a three-drug cocktail will be used in his execution if the appeals court doesn't block California's first execution in nearly five years.  He was sentenced to die for abducting, raping and killing 15-year-old Susan Jordan, of Riverside County, in 1980.  U.S. District Court Judge Jeremy Fogel denied Brown's two requests Saturday to change his mind about going forward with the execution.

In one court filing, Brown's attorney John Grele said he discussed the injection options with his client Saturday.  Grele said the two had an unproductive meeting because there are too many unknown elements about the injection process to properly advise his client in such a short time. "Mr. Brown has not had time to think about these matters or to weigh his options," Grele wrote....

Brown's latest appeal will be heard by a 9th U.S. Circuit Court of Appeal panel of three judges, all of whom were appointed by former President George W. Bush.

The inmate also planned Monday to ask a Marin County Superior Court judge to block his execution while a recently filed lawsuit challenging the state's lethal injection regulations is pending.

Brown also has petitioned Gov. Schwarzenegger for clemency, which is opposed by the Riverside County District Attorney Rod Pacheco and the victim's family.

September 27, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (11) | TrackBack

"Make new crack law retroactive"

The title of this post is the headline of this opinion piece appearing in today's National Law Journal authored by Harlan Protass and Mark Harris. Here is how it starts and ends:

Last month, President Obama signed landmark legislation revising broadly condemned laws passed in the late 1980s that punished crack cocaine offenses much more harshly than crimes involving powder cocaine. The new law raises the minimum amount of crack required to trigger a five-year mandatory minimum sentence from 5 to 28 grams, and the amount of crack required to generate a 10-year mandatory minimum from 50 to 280 grams. Although far from perfect — the new law still maintains an excessive distinction between crack and powder cocaine — the changes could, according to the U.S. Sentencing Commission, affect as many as 3,000 defendants each year, reducing the average prison term for crack offenses by more than two years. Attorney General Eric Holder Jr. described the new law as "long in coming."

Now Congress needs to finish the job by making the new scheme retroactive — a move that would permit thousands of men and women who were sentenced long ago for crimes involving crack to benefit from lawmakers' new and enlightened perspectives about punishment for those types of offenses. Basic fairness requires no less....

Opportunities to rethink — and cleanly remedy — social injustices are rare. The new crack sentencing bill signed into law last month presents just such a chance, one that lawmakers should not pass over. To do otherwise is to perpetuate mistakes that have taken a generation to fix.

September 27, 2010 in Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (43) | TrackBack

September 26, 2010

Making the case for sentencing reform in the form of "Mandatory Minimalism"

I am pleased to see this new article, titled "Mandatory Minimalism," about reforming mandatory minimum sentencing statutes authored by Professors Paul Cassell and Erik Luna.   (Though Cassell was once a federal judge, luna is likely now more famous for once having been cited by Lindsay Lohan).  Here are two paragraphs from the article's introduction:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims.  The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system).  If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms.  Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying.  It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system.  Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena.  Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps.  Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.

September 26, 2010 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (2) | TrackBack

Effective review of how Florida is dealing with the aftermath of SCOTUS Graham ruling

Today's Miami Herald has this effective and interesting piece discussing how the state is trying to deal with the Supreme Court's Eighth Amendment ruling in Graham concerning juve LWOP sentence for nonhomicide crimes.  The article is headlined "Ruling on young, violent lifers puts Florida justice on the spot," and here are excerpts:

Kyan Bucknor was 15 in 1999 when he shot two patrons and unleashed a volley of bullets into Broward Sheriff's Office deputy Al Hibbert outside a Lauderdale Lakes nightclub. The teen's sentence: life in prison.

But Bucknor, now 26, will get a reprieve thanks to a May U.S. Supreme Court decision banning life-without-parole sentences for juveniles who did not kill anyone.  The ruling left Florida in a quandary: For undeniably violent crimes, what is an appropriate alternative sentence in a state that has no parole system?

Bucknor is one of 23 South Florida men -- among 100-plus statewide, the most in the nation -- who must now be resentenced under the Graham v. Florida ruling.  So far, none have received new prison terms as the judicial system, case by case, county by county, struggles to comply....

Two possible fixes have emerged, from prosecutors and a lawmaker, both requiring mandatory lengthy prison terms followed by the possibility of parole.  A statewide prosecutors association has petitioned Florida's Executive Clemency Board to step in and commute the men's sentences to life with the possibility of parole after 20 years -- a move opposed by Gov. Charlie Crist.

Separately, a Jacksonville state lawmaker says he will introduce a bill next year to create a parole system for violent juvenile offenders, with eligibility after 25 years in prison. In keeping with the Supreme Court ruling, both solutions guarantee only the possibility of parole -- not that the inmates would actually get out early.

That's a key point to House Rep. Mike Weinstein, R-Jacksonville, because he wants to keep the offenders behind bars as long as possible. "They try to kill five people, and we can't seek a life sentence. They rape girls -- and they can't be given life," Weinstein said. "But we want to be able to give them a life sentence, and in my mind, they deserve a life sentence."...

In most states, the Graham ruling means simply amending a life sentence to include the possibility of parole. But Florida is in a particular bind because lawmakers abolished parole in 1983 after too many inmates released early were committing high-profile crimes. The state's Parole Commission now reviews only cases that pre-date 1983.

Statewide, there are more than 100 defendants who must be resentenced under the ruling, according to Barry University's Juvenile Justice Center, which tracks the Graham cases.  That means, for now, the onus falls on trial judges to resentence individual defendants. Judges who impose new but long terms would be violating the spirit of the Graham decision and simply spark more appeals, defense lawyers warn....

 Bill Cervone, president of the Florida Prosecuting Attorneys Association, worries that judges will impose wildly disparate sentences. "We're going to end up with a mish-mash of results all over the state," said Cervone, the Gainesville-based state attorney.

In an effort to streamline the process, last month the prosecutors group filed the petition with the governor's office, asking the clemency board to commute all Graham cases to sentences of life with the possibility of parole.  Then, the parole commission would review each case after the inmate has served 20 years in prison....

Any solution -- whether new legislation, or clemency -- will likely come after the November elections, when politicians will be more willing to tackle the hot-button issue.  Crist, in the midst of a hard-fought race for the U.S. Senate, said in a statement that he opposes the prosecutors' proposal....

Prosecutor Cervone believes the state attorneys' proposal, by eliminating the need for resentencing hearings, would be a kinder solution for victims who have struggled to cope with their experiences.

September 26, 2010 in Assessing Graham and its aftermath, Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

Latest poll suggests positive buzz surrounding California's marijuana legalization proposition

The local story, which is headlined "Marijuana legalization measure gets big lift,"  reports on the latest polling on California's various ballot initiatives this election season. Here is how it begins:

In a dramatic shift of sentiment, nearly half of California's likely voters now want to legalize marijuana use in the state, according to a new Field Poll. "The numbers have flipped (on Proposition 19) since our July poll," said Mark DiCamillo, the poll's director. "That's a major change in the direction of public feelings on legalizing marijuana."

The survey results being released today are especially meaningful since the first ballots for the Nov. 2 election will be cast in a little more than a week from now, starting Oct. 4.

The poll also found that voters remain strongly opposed to Proposition 23, which would suspend AB32, the state law limiting greenhouse gas emissions. Proposition 25, which would end the two-thirds requirement to pass a state budget, holds a solid lead, but the race appears to be rapidly tightening.

But it's California's effort to become the first state in the nation to legalize the sale and use of recreational marijuana for adults 21 and older that's being watched across the country.

Forty-nine percent of those likely voters now support Prop. 19, with 42 percent opposed. In a July poll, 48 percent of those surveyed planned to vote against the ballot initiative, with 44 percent backing legalization.

The reversal came despite a total absence of paid advertising for either side. Neither supporters nor opponents of the measure have raised much money for the Prop. 19 campaign, so far relying on word-of-mouth and media coverage to get their stories out.

That hasn't kept California voters from paying attention to the race, however. The poll found that 84 percent had seen or heard about the effort to legalize marijuana. By contrast, fewer than 40 percent of the voters had heard anything about the other two ballot measures in the survey.

This strikes me a big news not only because it suggests that Proposition 19 has a real chance of passage, but also because these kinds of poll numbers ought to allow (and perhaps even force) a greater number of politicians to begin discussing the possibility of marijuana decriminalization more seriously.  Moreover, these demographics makes me wonder which politicians may be the quickest to jump on the pot decriminalization bandwagon:

Men and women have very different views of Prop. 19, as do the young and the old.  While 54 percent of men back legalization, only 44 percent of women support Prop. 19.  Nearly 60 percent of the youngest voters, those under 40, want to see marijuana made legal.  Fifty-three percent of those 65 and older oppose it....

Support for Prop. 19 also breaks along geographic and political lines, with the heavily Democrat coastal counties 54 percent in favor while the more Republican inland areas are 52 percent opposed.  Not surprisingly, the measure's strongest support comes from the Bay Area and Los Angeles County, where just under 60 percent favor legalization.

September 26, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0) | TrackBack